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United States v. Ringer, 10th Cir. (2001)
United States v. Ringer, 10th Cir. (2001)
United States v. Ringer, 10th Cir. (2001)
TENTH CIRCUIT
MAY 22 2001
PATRICK FISHER
Clerk
No. 00-5112
LAWRENCE RINGER,
Defendant-Appellant.
After examining the briefs and appellate record, this panel has
determined that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
**
to run consecutively.
Defendant appeals, challenging the district courts decision to admit
testimony pursuant to Fed. R. Evid. 404(b) regarding Defendants access to a
weapon prior to the second bank robbery on May 21, 1999. Defendant argues that
in admitting the evidence, the district court failed to follow the procedural
safeguards set forth in Huddleston v. United States, 485 U.S. 681 (1988).
Specifically, Defendant argues the district court failed to determine pursuant
to Fed. R. Evid. 403 whether the danger of unfair prejudice to Defendant
outweighed the probative value of the evidence. We exercise jurisdiction under
28 U.S.C. 1291. We review a decision to admit evidence under Fed. R. Evid.
404(b) for an abuse of discretion. United States v. Zamora, 222 F.3d 756, 762
(10th Cir. 2000). Applying this standard, we affirm.
I.
When interviewed by authorities, a bank teller described the perpetrators
gun as small, possibly a .22 semi-automatic, with both rusty and shiny spots on it.
The Government provided notice pursuant to Rule 404(b) that it intended to
introduce evidence of Defendants possession of a .22 or .25 caliber gun as
circumstantial evidence to show Defendant had access to a firearm similar to the
one used in the second robbery. Defendant objected. After an evidentiary
hearing, the district court ruled the evidence was admissible.
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Carliss Anthony Ball testified at trial that he gave Defendant a rusty .22 or
.25 caliber automatic, approximately a month and a half before the robbery took
place. Ball testified as follows:
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evidence if the danger of, among other things, unfair prejudice substantially
outweighs its probative value. See United States v. Rodriquez, 192 F.3d 946, 951
(10th Cir. 1999). Evidence is unfairly prejudicial if it makes a conviction more
likely because it provokes an emotional response in the jury or otherwise tends to
affect adversely the jurys attitude toward the defendant wholly apart from its
judgment as to his guilt or innocence of the crime charged. Id. (internal
quotations omitted). Where the district court does not expressly rule on the
probativeness of evidence, it does so implicitly when the defendant objects to the
404(b) evidence as unfairly prejudicial and the court rejects defendants
argument. United States v. Fingado, 934 F.2d 1163, 1165-66 (10th Cir. 1991).
Here, Defendant specifically objected to the evidence as prejudicial.
At the motion hearing, Defendant argued the evidence lacked probative value
because of the dissimilarity between the gun which Ball gave to Defendant and
the gun used in the robbery. Defendant had ample opportunity to present his
arguments regarding prejudice to the court, and the court clearly rejected those
arguments by admitting the evidence. See United States v. Fitzherbert, 13 F.3d
340, 343 (10th Cir. 1993) (holding no abuse of discretion where although district
court did not expressly find that a videotapes probative value outweighed unfair
prejudice, the court in essence rejected defendants prejudice argument by
denying his motion after hearing argument on the issue).
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Finally, Huddleston requires that the trial court shall, upon request,
instruct the jury that the similar acts evidence is to be considered only for the
proper purpose for which it was admitted. 485 U.S. at 691-92 (emphasis added).
Here, Defendant did not make such a request and, thus, the district courts
decision not to give one is not an abuse of discretion. See Fed. R. Evid. 105;
Fingado, 934 F.2d at 1166.
The district court did not abuse its discretion in admitting the challenged
testimony at trial. Therefore, its judgment is
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge